KNUDSEN V. KNUDSEN

AMISSAH J.A.

This is case began by a wife, Mrs. Christiana Knudsen, filing a petition for divorce from her husband, Peter Knudsen. Mrs. Knudsen is a Ghanaian. Her husband is a medical doctor by profession and Danish by nationality. There are three children of the marriage-two boys, Eric and Henry, aged at the time the petition was filed on 21 October 1973, sixteen and twelve years respectively and a girl, Mary then aged fifteen.

In her petition, the wife after the usual recitals stated:

“(4) That without any cause whatsoever the respondent has expressed the desire that he no longer wants the petitioner and that they should execute a deed of separation. (5) That in view of matters stated in paragraph (4) above, the petitioner cannot live with the respondent again.”

This was the sole cause which the wife disclosed for her seeking the divorce. By an affidavit which accompanied the petition, the wife swore that the facts contained in paragraph (4) of her petition were true and that the statement contained in paragraph (5) was true to the best of her knowledge.

In his answer, the husband set out in great detail the reasons why he could no longer live with the wife. Having regard to the course taken by the case subsequently it is of some importance that these matters be set out in full. The relevant part of the answer is as follows:

“(7) In answer to paragraph (4) of the petition, the respondent admits discussing executing a deed of separation with the petitioner because for many years now, the petitioner has been behaving in such a way that the respondent cannot reasonably be expected to live with the petitioner.(8) That right from the early days of the marriage, the petitioner made it difficult and embarrassing for him to do his work as a practising doctor.(9) That between 1958-1962, the respondent was subjected to nagging and a two-hour sermon of damnation in the night from the petitioner any time the petitioner saw the respondent talking to the female nurses on his staff at Tafo Hospital.(10) That the petitioner on many occasions, called at the hospital and openly accused the nurses of flirting with the respondent.(11) That while they were at Tafo, it became the habit of the petitioner to try to prevent the respondent from going out or going on his hunting expeditions and in 1960, the petitioner set fire to the respondent’s hunting equipment.(12) That as a result of the petitioner’s behaviour, the respondent had no peace of mind and could not work at Tafo and had to leave Ghana for Denmark.(13) That even in Denmark, the petitioner continued to accuse nurses in the hospital where he worked of flirting with the respondent to his embarrassment.(14) That while in Dorset (England) the petitioner continued her nagging attitude.(15) That on one occasion in 1971 in Dorset, the petitioner picked a quarrel with the respondent and among other things did the following:(a) Used an axe and destroyed a writing desk and chair which the respondent inherited from his father.(b) Collected the respondent’s clothes, put them in the mud and poured fruit juice on them.(c) Smashed the respondent’s slide-projector.(d) Broke all the respondent’s hunting trophies from Ghana.(e) Tore up the respondent’s medical books and other books which the respondent inherited from his mother.(f) Struck the respondent with a cutlass and it was with some effort before the respondent disarmed her.(g) Smashed the respondent’s hunting gun.(16) That despite the heavy school fees the respondent pays for the children of the marriage, the petitioner made it her habit to go on frivolous voyages between Ghana and London at will.(17) That when matters came to a head, the respondent gave her money to go back to Ghana in 1971.(18) That contrary to the respondent’s instructions, the petitioner went and attacked the respondent and the children at a train station and it was on the intervention of a police woman that the respondent and the children went back to Denmark.(19) That because of this behaviour of the petitioner, the respondent had to leave England to work in Nairobi (Kenya) with the Flying Doctor Services.(20) That instead of staying with her sister-in-law in Nordborg (Denmark) as agreed, the petitioner withdrew the children’s savings from the bank and went to live in London.(21) That after squandering all the money, the petitioner tried to defraud the respondent with a fictitious school bill in respect of Henry.(22) That the respondent had to leave his work for London to settle the situation and send the petitioner back to Ghana, i.e. after settling the youngest child also in a boarding school.(23) That in November 1972, contrary to the respondent’s instruction, the petitioner flew to Nairobi only to return to Ghana two weeks later and this caused the respondent a lot of financial embarrassment.(24) That while in Nairobi, the petitioner continued her nagging attitude and finally wrote a letter to the respondent’s employers which resulted in the respondent being called upon to resign the job in March 1973.(25) That since then, the respondent has not had any new employment yet.(26) That when the children came on summer vacation in June 1973, the petitioner seized their passports and refused to allow them to go back to school in England but finally surrendered the passports on the intervention of my solicitors.(27) That as a result of the behaviour of the petitioner, the children have stated that they would no longer come to Ghana as long as the petitioner lives and is in position to embarrass them, with such behaviour.(28) That the marriage has broken down irretrievably and that there is no possibility of a reconciliation between the petitioner and the respondent.”

For these given reasons, the respondent cross-petitioned also for divorce.

The petitioner’s reply to the respondent’s answer and cross-petition denied the allegations in paragraphs (7) to (26) quoted above and further stated:

“(4) The petitioner never at any time burnt any articles of the respondent.(5) The respondent’s relations did not like the exogamous marriage and made no secret of it.(6) Whilst in Denmark three men came individually on separate occasions to accuse the respondent of flirting with their wives.(7) The respondent left the Flying Doctor Service because of his clashes with the authorities on many issues - laxity in morals and discipline, etc.”

This reply of the wife was filed on 29 October 1973. After some preliminary proceedings, the court adjourned to 19 November 1973. On that day, counsel for the wife asked leave of the court to withdraw the petition. The application was not opposed and the petition was struck out. Counsel for the husband on the other hand intimated to the court that they wished to proceed with the cross-petition. This was objected to by counsel for the wife who submitted that the respondent could not go on with his prayer after they had withdrawn their petition. The case was adjourned. When it came up eventually on 22 November, counsel for the wife withdrew his objection and the husband’s case on his cross-petition was heard.

The husband gave evidence on the matters specified in his answer and cross-petition. He was cross-examined by counsel for the wife. The cross-examination contained no challenge of the conduct of the wife in their married life which the husband had complained about in his cross-petition and evidence. It rather sought to show that the nagging complained of became part and parcel of the marriage. To this the husband replied that they were unhappy. Then the cross-examination turned to the point that in spite of all the husband’s allegations against the wife, he came to Ghana in May 1973 to live with her and continued to live with her until the end of September 1973. The questions and answers on this point went as follows:

“Q. Up to the end of September this year you were living with the petitioner in the same house?A. Yes because of the children who had come on holidays.Q. When did the children go back to school?A. About 10 September 1973.Q. Notwithstanding all you have said about the petitioner, you agreed to come to live with her?A. I decided to come and get separation and then work here. I considered it better in the interest of the children, to live here in Ghana.”

The husband had already said in his examination-in-chief that he came to Ghana on 13 May 1973, for two reasons: (1) to find out if he would be permitted to practise here, and (2) to arrange for judicial separation. Neither of the reasons was challenged in cross-examination. Indeed when the respondent restated in cross-examination his reasons for coming to Ghana, counsel left that point and went on to another. The cross-examination further established that while living together in Ghana in 1973, the parties had sexual relations, the last time being in May. However, they continued after that to share the same bedroom. The wife had assisted the husband in his quest for a job by accompanying him to the Ministry of Internal Affairs. It also came out in the cross-examination that the wife had the husband arrested on an absconding warrant when her petition was served on him. This fact was not new to the court as it had been disclosed in affidavits connected with the preliminary proceedings. The husband rested his case on his evidence.

The wife called no evidence to rebut what had been established by the husband’s case.

The husband’s cross-petition to dissolve the marriage was refused. And it is on account of that decision that this appeal has been brought. For his decision, Aboagye J. gave the following reasons as stated in [1974] 1 G.L.R. 133 at pp. 134-135:

“From the evidence given by the respondent it would appear that the marriage between him and the petitioner had not been a happy one up to the time he left Kenya for Denmark. But whether a marriage is a happy one or not is subjective. Acts which may make one couple feel happy may disrupt the marriage of another. Despite all that the petitioner had done to the respondent from 1957 up to March 1973, the respondent chose to spend the last Easter with her and their children in Denmark. He further chose to come and live in Ghana with her and to find work to do here. I must say that I do not believe the respondent’s story that he came to Ghana to arrange for judicial separation. If that were so he would not have lived and cohabited with the petitioner from the very day they arrived in Ghana on 13 May 1973, up to 12 October 1973, when he was arrested at the instance of the petitioner. There is evidence that after their arrival here the respondent has had sexual intercourse with the petitioner and that the petitioner accompanied him to the Ministry of Internal Affairs to secure him the necessary permits to enable him to settle in Ghana. She also tried to help him find employment in Ghana. The conduct of the petitioner since they arrived in Ghana in May this year is inconsistent with their marriage having broken down before they came back and their subsequent conduct shows that they were living a normal married life.”

From this, it is quite clear that an important element amongst the considerations leading to his conclusion was the learned judge’s disbelief of the story told by the husband that he had come to Ghana to get a judicial separation from his wife. Since 1971 when the Matrimonial Causes Act, 1971 (Act 367), was enacted, judicial separation has ceased to be a relief granted by our courts. But whether that relief can or cannot any more be granted by our courts does not of itself negative an ordinary layman’s belief that he could get such a relief, especially where that relief has been available for nearly a century previously. In any case, the non-availability of the relief contemplated by the husband when he arrived in Ghana in 1973 was not the reason for the rejection of his evidence on the point. I confess, with all due deference to the learned judge, that in spite of the reason given by him for rejecting the story, I find it difficult to understand how in the circumstances of this case, he could have arrived at his conclusion on that point. This was not a case in which he had condemned the husband as an out and out liar whose word was not worthy of credit. On the contrary, the judge accepted the evidence of the husband on every other particular except on this point concerning his reason for coming to Ghana. Why should the husband lie only as to this? The husband had explained why he came to Ghana and occupied the same house, nay, the same bedroom with the wife; it was because of the children. If that stood alone one might say that it was a somewhat thin explanation which would not serve to destroy the normal conclusion that one who seeks to separate from his wife does not strive to live with her. But it does not stand alone. It will be recalled that this whole matter came before the court now because it was started by a petition filed by the wife. The allegation in her petition which she swore to be true and which formed the basis of her request for divorce was that without any cause whatsoever the respondent had expressed the desire that he no longer wanted the petitioner and that they should execute a deed of separation. How did this allegation coming from the wife herself come about if what the husband was saying about getting a judicial separation from the wife was untrue? Even if it is accepted that the petition was filed in mid-October and that the learned judge was viewing a state of affairs which came into operation five months before, surely some time would have elapsed between the consultation by the wife or her lawyer and the filing of her petition. The fact that the wife later withdrew her petition did not render the facts she alleged in it and swore to non-existent, it merely meant that she did not wish to pursue her remedy. Further the husband’s evidence on the point, which derives confirmation from the wife’s allegation in her petition, was, as will be recalled, not challenged in cross-examination. In these circumstances I find the learned judge’s expression of disbelief of the single statement in the husband’s evidence difficult to accept.

Both the petition and the cross-petition were presented to the court under the Matrimonial Causes Act, 1971 (Act 367). Under section 1 (2) of Act 367, “The sole ground for granting a petition for divorce [in a marriage contracted under the Marriage Ordinance, Cap. 127 (1951 Rev.)] shall be that the marriage has broken down beyond reconciliation.” The Act did away with the old law which required that a matrimonial offence be proved by the party praying for divorce. But the Act requires that for the purpose of showing that the marriage has broken down beyond reconciliation the petitioner must satisfy the court of one or more of certain given facts. They were stated in section 2 (1) as:

“(a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or(d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or(e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or(f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.”

On the facts of this case, obviously none of the above itemised facts is relevant to the cross-petition except that which appears in section 2(1)(b). The question therefore is whether the husband established that the wife (who is respondent to his cross-petition) behaved in such a way that he could not reasonably be expected to live with her. Behaviour of a party which would lead to this conclusion would range over a wide variety of acts. It may consist of one act if of sufficient gravity or of a persistent course of conduct or of a series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so. Take a petition presented on the ground that the respondent has been convicted of manslaughter through gross negligence of the child of the marriage. The determination of the question whether the spouse seeking the divorce can or cannot reasonably be expected to live with the other depends on that one act alone. In the present case before us, however, reliance is not placed on only one single act. The conduct complained of spans a number of years. The acts comprising the behaviour complained of were given in the husband’s answer and cross-petition and have been reproduced earlier in this judgment. Some of them, for example, the frivolous trips taken at will by the wife, may, if they stood alone, be dismissed as annoying incidents of a marriage. It is not so easy to condone others like acts of ‘violence such as those recounted in connection with the occasion when the wife used an axe in destroying furniture inherited by the husband from his father, smashed the husband’s hunting trophies from Ghana, and tore up books inherited from his mother. All these are properties of sentimental value which cannot be replaced. Apparently on that same occasion, she destroyed other property and attacked the respondent with a cutlass. In addition, there is the evidence which was accepted by the learned judge of conduct on the part of the wife which made it impossible for the respondent to hold on to a job in his chosen profession. Apart from the nagging over alleged flirtations with nurses in various countries which in two cases were of sufficient intensity to cause the husband to leave the job and the country to try his luck in another, there is the letter which the petitioner wrote to the authorities of the Flying Doctor Services in Kenya which led to the husband being forced to resign his appointment with them.

In the face of such evidence of violence and persistent hounding, if a man comes to court saying that his marriage has reached a stage that he “cannot reasonably be expected to live” with his wife any more, should a court say to him oh yes you can? The learned judge said that whether a marriage was happy or not was a subjective matter. It is true that what one person may tolerate may not be tolerated by the next person. I do not think, however, that having regard to the phrasing of the particular paragraph under which the cross-petition has to be considered, namely, that the supplicant “cannot reasonably be expected to live” with the spouse, the test to apply in coming to a conclusion on this matter is a subjective test. The judge’s statement compounds two identities. The identity of the person or persons whose marriage is the subject-matter of opinion and that of the person or persons whose opinion on the continuity of the marriage is required by the law here. As to the latter, the paragraph calls for the assessment of society made and pronounced by its representative, the court, as to whether in the circumstances given the one party can or cannot be expected to live with the other. The test to apply therefore, is what others may expect from the conduct of the respondent to the petition. That involves an objective not a subjective assessment of the conduct and the reaction of the petitioner. In Mensah v. Mensah [1972] 2 G.L.R. 198 Hayfron-Benjamin J. (as he then was) held that the test was objective. With that I respectfully agree. Speaking for myself, I do not think that it is acceptable behaviour in a marriage for one of the parties to make it impossible or difficult for the other to live in every country where their connections or considerations of work dictate that they should stay without that partner suggesting an alternative; for that partner by conduct to make it impossible or difficult for the other to practise his profession or to hold on to a job on which they both depend for a livelihood; for that partner to make it impossible or difficult for the other to pursue his legitimate sporting interest; and to crown it all for that partner to present a petition for divorce against the other and have him or her arrested by the authorities on a false charge in connection with that petition. The law does not require men to have the patience of Job. Though, it does not say that life is full only when the pleasures of man proceed uncloyed by untoward acts of his marriage partner, it recognises that each man is entitled to a modicum of happiness and contentment in this world.

But though it is the view of reasonable men that must be looked for, the question they have to answer is whether the particular petitioner, not all men, can in the circumstances be expected to live with the particular respondent. In the English case of Ash v. Ash [1972] 1 All E.R. 582, Bagnall J. considering a similar provision in their Divorce Reform Act, 1969 (c. 55), declared that the court in determining whether the particular petitioner can or cannot reasonably be expected to live with the particular respondent must take into account the character, personality, disposition and behaviour of the petitioner as well as the behaviour of the respondent as alleged and established in evidence. Can the man we have seen in this case be expected to live with this woman having regard to her conduct? The answer to me is definitely in the negative.

The learned trial judge as reported in [1974] 1 G.L.R. 133 at p. 135 properly recognised that under the Matrimonial Causes Act, 1971, “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” Then he continued at p. 135, “In my opinion, on the evidence on record, the marriage between the petitioner and the respondent has not broken down. Even if it has, it has not broken down beyond reconciliation.” Two factors seem to have driven the judge to this conclusion. The first is that which the wife through her counsel relied upon, that is, in spite of all that had been alleged against her, the husband stayed with her from May to September (the evidence shows September not October as said by the learned judge) in Ghana and used her services in trying to secure a job in order to settle here. The respondent’s explanation that he did this because he thought the interest of their children would best be served by it has been mentioned. Even where parties to a marriage decide that continuing as man and wife is impossible and out of the question, they, both have a common interest in the welfare of their children which is undeniable and ought to be encouraged. So pursuing a course of conduct only because of the good of the children does not necessarily place a stamp of approbation on the conduct of the other spouse. In any case it is expressly provided in section 4 of Act 367 that:

“For the purposes of section 2 (1) (b), [that is the paragraph we have cited as the relevant provision for this case] in determining whether the petitioner cannot reasonably be expected to live with the respondent, the court shall disregard any period or periods not exceeding six months in the aggregate during which the parties to the marriage lived with each other as man and wife after the date of the occurrence of the final incident relied on by the petitioner and proved to the court in support of his allegation.”

The parties lived in Ghana from May to September after the incident leading to the respondent’s resignation from the Flying Doctor Services in Kenya. That period together with the Easter holidays in Denmark does not exceed the prescribed six months which the court ought to have ignored. In not disregarding that period, the learned judge went wrong.

Not only did the judge look at the period referred to, which he ought not to have done, but he used it as material which should serve to obliterate the whole of the previous prejudicial conduct of the wife prior to that time from the purview of the court. He, therefore, was able to look upon the arrest of the respondent at the instance of the petitioner as a single isolated incident which was insufficient to justify a determination that the marriage had broken down beyond reconciliation. In this connection, he said at p. 135:

“The Petitioner’s conduct in getting the respondent arrested must be condemned but that single act cannot in my opinion be said to have broken down the marriage beyond reconciliation since there is no evidence that after the arrest of the respondent unsuccessful attempts have been made to reconcile the parties.”

I do not think I am called upon in this case to rule whether the single act of causing a spouse to be arrested on a trumped-up charge does or does not in every case amount to such behaviour that the arrested partner “cannot reasonably be expected to live with” the spouse who caused his or her arrest. I merely comment on the obvious humiliation, inconvenience and deprivation of personal liberty to a spouse that such conduct causes and pass on. The case of the husband was not based on that single act. His case was that the cumulative effect of the conduct of the wife over the years including this final act amounted to behaviour which justified the necessary conclusion that he could not be expected to live with her. In the event, I fail to see why the arrest should be isolated for the purpose. Human experience does not support such treatment of the marriage relationship. A spouse does not necessarily forget a wrong done by the other if it is serious enough and goes to the stability of the marriage merely because there has been a reconciliation. The offending spouse risks the whole past being brought up again if he or she were to offend again. It is because of this fact of life that the old law of divorce developed the rules of revival of condoned acts. I think therefore that even if the parties’ life together in Ghana from May to September 1973 could be properly looked at as amounting to the husband’s condonation of the previous acts of the wife, upon the arrest at her instance a court faced with the question whether the wife had behaved in such a manner that the husband cannot be expected to live with her any more was bound to look not only at the incident of arrest but at the previous prejudicial conduct brought forward to justify the claim as well.

Finally, the learned judge took the view that unless it could be shown that there had been an actual attempt at reconciliation which failed, the petitioner could never obtain a divorce. This comes out in the passage of his judgment where he said at p.135 that “there is no evidence that after the arrest unsuccessful attempts have been made to reconcile the parties.” In taking this view, the judge seems to have made proof of the fact stated in section 2(1)(f) of the Act, i.e. “that the parties to the marriage have, after diligent effort, been unable to reconcile their differences,” a requirement in every petition of divorce in addition to any other fact which may be chosen under section 2(1). But a reading of section 2(1) shows that paragraph (f) is preceded by “or” not “and.” Section 2(1)(f) therefore is not a requirement additional to any of the other stated facts but a separate fact in itself which could be proved to ground a divorce. I believe that if the law had expected that in every case there should be evidence of an unsuccessful attempt at reconciliation, section 2 (1) (f) would have been made conjunctive not disjunctive to the other fact situations given. Of course, in a state of affairs where the duty is placed upon the petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the court arrive at the desired conclusion. It does not, to my mind follow, however, that a divorce will never be granted in any case unless evidence of an unsuccessful attempt at reconciliation is led. Situations are conceivable where a reasonable man may conclude that any attempt at reconciliation is useless. In such cases I think that the law does not require that the useless exercise be gone through - just for the sake of form. Once again I must acknowledge my indebtedness to Hayfron-Benjamin J. in Mensah v. Mensah (supra). The petition in that case was brought under both section 2 (1) (b) and (f). The petitioner was unable to establish the fact under paragraph (f) the learned judge holding that the petitioner had failed to establish to the satisfaction of the court that the parties after diligent effort at reconciliation were unable to resolve their differences. Nevertheless the divorce was granted under paragraph (b), the paragraph under discussion in the present case, in spite of the fact that no evidence of an attempt at reconciliation was given. In my opinion, this case before us is an example of a situation where formal evidence of an attempt at reconciliation after the arrest of the husband need not be given. The history of the marriage shows a series of acts of the wife some of them minor in themselves but the cumulative effect of the whole of which is serious enough to lead reasonable men to agree with the husband in his claim that he could not reasonably be expected to live with the wife.

For these reasons I would allow the appeal of the husband and grant the divorce prayed for.

LASSEY J.A.

I agree.

FRANCOIS J.A.

I also agree.

Appearances

R. K. KORSAH FOR THE APPELLANT; NO APPEARANCE BY OR FOR THE RESPONDENT.